Basic Facts about Divorce

Basic Requirements and Grounds for Divorce

Either you or your spouse must be a resident of Illinois or a member of any armed force stationed in Illinois to file for a divorce, called a "dissolution".  Either spouse can get a divorce simply by stating in divorce papers that "irreconcilable differences" have caused a breakdown in the marriage and that the two parties have been separated for at least two years.  If both spouses are in agreement that there should be a divorce, they can agree in writing (called a "stipulation") that the marriage can be ended after only six months' separation.

 

If the spouses have been separated less than two years and are's in agreement that a divorce should occur, the spouse wanting the divorce must prove one of the following grounds for divorce:

  • Impotence of the other spouse
  • The spouse had another spouse living at the time of marriage, or has committed adultery or deserted the spouse wanting the divorce
  • The spouse attempted to kill the spouse wanting the divorce by poisoning or other malicious means
  • Extreme and repeated mental or physical cruelty
  • Conviction of a felony or an infamous crime
  • Infection of the spouse with a sexually transmitted disease
  • Excessive use of addictive drugs for two or more years

Factors such as adultery do not matter in determining property or custody issues.  The legal divorce process begins when one spouse files a "Petition for Dissolution of Marriage" or Praecipe for Summons" with the Circuit Court.  The other spouse is then served with the paperwork and given time to respond.  If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial.  If the parties can't come to an agreement, the court will set a time for a hearing, usually some time in the future.  After the Petition for Dissolution has been filed, either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.

 

Child Custody and Visitation

In Illinois, if parents do not agree to custody and a parenting plan by the mandatory case management conference, the court, after determining appropriateness for participation, will send the matter to mediation.  If mediation is unsuccessful, then the court will make custody decisions based on what is in the "best interest" of the child.  In deciding how much time each parent should spend with the child, the court considers many factors, including:

  • The relative strength, nature and stability of the child's relationship with each parent and siblings
  • The child's adjustment to home, school, and community
  • The mental and physical health of everyone involved
  • Any physical violence or threats of physical violence, by a child's potential custodian, whether directed against the child or another person but witnessed by the child
  • The occurrence of ongoing abuse in either household, whether directed at a child or another person
  • The willingness and ability of each parent to encourage a continuing close relationship between the other parent and the child
  • The wishes of the parents
  • The wishes of a child who is sufficiently mature to express reasoned and independent preferences

The court won't consider any conduct by either parent that doesn't affect the relationship with the child, and will presume that both parents should have maximum involvement regarding the physical, mental, moral, and emotional well being of the child.  After the parenting agreement is signed by the judge and filled with the court clerk, both parents are bound by it.  If a parent is denied court-ordered access to a child, he or she may bring the issue back before the court.  The judge may modify the visitation order, order makeup visitation for the time missed, and order counseling or mediation.

 

Child Support

In Illinois, child support is based on a percentage of the net income of the noncustodial parent and how many children the parent is responsible for supporting.  Child support not paid after 30 days or more accrues interest at 9% per year.  If necessary, a court can set aside a portion of joint or separate assets of the parties in a separate trust or fund for the support and education for the parties' child(ren).  An Illinois child support order can be modified if there has been a change in circumstances.  Examples of this would include: 

  • A big increase or decrease in either parent's income
  • The child spending a lot more time with either parent
  • The child being several years older or having special financial needs such as schooling or medical expenses

 

Dividing the Property 

In Illinois, assets and debts acquired during your marriage - called "marital property" - will be divided "in just proportions" when you divorce.  But not all property is consider marital property.  Assets you had before you married may be considered "non-marital property" if you kept that separated from property acquired during the marriage.  The income produced by a separate property investment may also be non-marital property, as long as it hasn't been "commingled" or mixed together with marital property.

 

In deciding how to divide property owned by a divorcing couple, judges will consider:

  • The length of the marriage
  • How much and what kind of marital and non-marital property
  • The financial circumstances and earning potential of each spouse
  • The age and health of each spouse
  • The contributions each spouse has made in acquiring property
  • How each spouse has benefited from the parties' property
  • Obligations and rights from prior marriages
  • Any agreements the parties made during the marriage
  • The tax consequences of property division

 It's important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth.

 

Alimony 

A court can order alimony, called spousal "maintenance" in Illinois, at its discretion.  A court will generally consider such factors as the following:

  • Income and property of both parties and the abilities of each to meet their financial needs
  • Length of the marriage
  • Standard of living established during the marriage
  • Time a spouse may need to retrain or otherwise find employment
  • Age, physical condition, and emotional condition of the spouse seeking support
  • Tax consequences of property division on the parties
  • Any agreement between the parties

A  court can order temporary maintenance while the divorce is pending.  Most maintenance is ordered for a specific length of time.  Once ordered, maintenance can be modified only upon a showing of a "substantial change in circumstances"  (unless the party is receiving child and spousal support services from the Illinois Department of Public Aid and if certain other conditions exist).

 

"Basic Facts about Divorce" was obtained from www. state.il.us/court

  

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